some of the eligible candidates have not been appointed till date. Mr. R. Venkataramani, learned Senior Counsel appearing for the DISCOMS fairly submitted that if persons who applied for selection as Junior Lineman in 2006 were not appointed due to condition 6(iv) (c) of the revised notification dated 20.10.2006, they shall be considered for appointment. Keeping in mind that appointments to the posts of Junior Linemen have been made long back and the services of those appointed were regularised, any interference with such appointments will cause irreparable loss to them apart from adversely affecting the smooth functioning of the A.P. TRANSCO and the DISCOMS. 13. Needless to say that, any future recruitment to the post of Junior Lineman shall be done strictly in accordance with the law.

 Non -Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos._2049-2158 of 2019
[ Arising out of S.L.P. (Civil) No.15001-15110 of 2013
]
K. Amarnath Reddy & Ors.
 .... Appellants

Versus
Chairman & Managing Director, A.P.S.P.D.C.L. & Ors.
Etc. Etc.
….Respondents
W I T H
Civil Appeal Nos. 2159-2268 of 2019
[ Arising out of SLP(C) Nos. 15114-15223 of 2013]
Civil Appeal Nos.2269-2272 of 2019
[ Arising out of SLP(C) Nos. 25586-25589 of 2013]
Contempt Petition (C) Nos.570-679 of 2018
In SLP(C) No. 15001-15110 of 2013
Contempt Petition (C) Nos.1773-1776 of 2017
In SLP (C) No.25586-25589 of 2013
Diary No.18811 of 2018
Diary No.26419 of 2018
J U D G M E N T
L. NAGESWARA RAO, J.
Leave granted.
1. The validity of appointment to the posts of Junior
Linemen in the Andhra Pradesh Transmission Corporation
1 | P a g e
(A.P. TRANSCO) and the four Andhra Pradesh Distribution
Companies (DISCOMS) in the erstwhile combined State of
Andhra Pradesh is in issue in these appeals.
2. On 07.06.2006, the Special Chief Secretary, Energy
Department, Government of Andhra Pradesh permitted the
Chairman & Managing Director, A.P. TRANSCO and the
Chairpersons, Andhra Pradesh Power Coordination
Committee (APPCC) to fill up 7114 posts of Junior Linemen
on contract basis in the four DISCOMS duly following the
rule of reservation. The appointment on contract basis
was to be for a period of one year which would cease
automatically after the said period. Pursuant to the said
permission granted by the Government, the A.P. TRANSCO
and the four DISCOMS advertised 7114 vacancies and
called for applications from the eligible candidates for the
post of Junior Lineman vide separate notifications. For the
sake of convenience, the conditions prescribed in the
notifications, issued by Andhra Pradesh Central Power
Distribution Company Limited (APCPDCL) are referred to in
the judgment. The permission granted by the Government
contained certain conditions which were included in the
advertisement dated 08.06.2006. ITI qualification,
2 | P a g e
residence in the notified area, and pole climbing were
made compulsory as per Clauses 7 (i), (ii), and (iii) of the
advertisement. According to Clause 7 (iv), all candidates
who fulfilled the compulsory conditions in sub clauses (i),
(ii), and (iii) of Clause 7 would be considered for selection
on the basis of the marks obtained by them in ITI
examination. A writ petition was filed in the High Court by
the existing contract labourers questioning Clauses 7 (ii)
and (iv) of the advertisement/notification dated
08.06.2006 by which residence in the notified area was
made compulsory and selection was based on the marks
obtained in ITI examination. The writ petition was
disposed of with a direction that Operation/ Circle/District
shall be treated as a unit of appointment without reference
to the restriction imposed under Clause 7 (ii). There was a
further direction that weightage should be given to
experienced candidates.
3. A revised notification was issued on 20.10.2006 in
which the criteria for selection and appointment as Junior
Lineman was altered. The contract labourers were given
preference for selection over the fresh candidates.
Amongst the contract labourers, selection was to be on the
3 | P a g e
basis of earlier date of birth. The preference given to age
in the revised notification was the subject matter of
challenge in the High Court. The High Court allowed the
writ petition by holding that the absolute preference given
to the earlier date of birth irrespective of the merit of the
candidates in the qualifying examination and the length of
service as illegal and arbitrary. However, the High Court
refused to interfere with the selections already made as
they were contractual in nature and were made only for a
period of one year. Being aware that setting aside the
appointments would result in serious dislocation of work,
the selected candidates were permitted to continue till the
expiry of the original contract. The authorities were
directed not to extend the contract under any
circumstance. A fresh selection process was directed to
be initiated and further direction was given by the High
Court to consider the feasibility of evolving a structured
formula to give preference to the contract labourers by
awarding one mark for each year of completed service.
Rule of reservation was to be strictly followed and the
appointments were to be made only for one year.
Aggrieved by the said judgment, the A.P. TRANSCO and the
4 | P a g e
DISCOMS filed Writ Appeal No.1434 of 2008 and Batch.
The directions issued by the learned Single Judge regarding
the method of preference to be given to the contract
labourers and the appointments to be restricted to only
one year were set aside by the Division Bench of the High
Court. However, the Division Bench approved the
directions pertaining to reservation.
4. During the course of arguments in the Writ Appeals,
the learned Advocate General on the basis of written
instructions from the DISCOMS submitted that the writ
petitioners who were adversely affected by Clause 6 (iv)
(c) of the revised notification which relates to preference
being given to the earlier date of birth can be
accommodated. The submission of the learned Advocate
General was that the services of all the 7114 Junior
Linemen have to be terminated if Clause 6 (iv) (c) of the
revised notification dated 20.10.2006 is struck down which
would lead to serious disruption of essential services. In
order to obviate such dislocation, a decision was taken to
appoint and absorb all the writ petitioners who could not
be selected in view of the Clause 6 (iv) (c) of the revised
notification. On the basis of the statement of the learned
5 | P a g e
Advocate General, the Division Bench directed
appointment of all the writ petitioners who had submitted
their applications pursuant to the notifications dated
08.06.2006/ 20.10.2006 and who could not be selected in
view of the condition mentioned in Clause 6 (iv) (c) of the
revised notification dated 20.10.2006. It is relevant to
note that the said direction was made applicable even to
those candidates who did not approach the High Court.
The Division Bench observed that all those selected and
appointed pursuant to the judgment shall be entitled to all
the benefits at par with the persons who have already
been appointed as Junior Linemen. It was further held that
they were entitled to the regularization of their services as
well.
5. The services of 7114 Junior Linemen who were
appointed on contract basis pursuant to the notifications
dated 08.06.2006/ 20.10.2006 were regularized on
28.12.2010 w.e.f. 03.10.2008. Aggrieved by the non
implementation of the directions issued by the Division
Bench in Writ Appeal No.1523 of 2008 and Batch dated
17.11.2009, persons who were not appointed filed
Contempt Petitions. It was brought to the notice of the
6 | P a g e
Division Bench hearing the Contempt Petitions that a
learned Single Judge stayed all further appointments to the
posts of Junior Linemen on 22.04.2010 in Writ Petition
No.9129 of 2010. The Division Bench vacated the said
interim order and directed the completion of the entire
process of appointment and regularization as per the
judgment in Writ Appeals 1434 of 2008 and Batch within a
period of two months.
6. Permission was accorded by the Government to fill
up another 7319 vacant posts of Junior Linemen in the A.P.
TRANSCO and the four DISCOMS on 15.06.2011. In the
meanwhile, the process of implementation of the judgment
in Writ Appeals 1434 of 2008 and Batch was continuing
and a large number of contract labourers who could not be
appointed in view of Clause 6 (iv) (c) of the revised
notification dated 20.10.2006 were appointed even after
the fresh notification was issued. There is no dispute that
these appointments were beyond the 7114 posts that were
advertised in 2006.
7. Several writ petitions were filed in the High Court
raising various points including the validity of
appointments beyond those that were advertised in the
7 | P a g e
year 2006. Preference given to experienced candidates in
the selections made pursuant to the advertisement of
2006 was also subject matter of some writ petitions. The
High Court disposed of the writ petitions by a common
judgment dated 14.03.2012 by giving the following
declarations and directions:
“DECLARATIONS:
i) The Notifications dated 6/8.06.2006 as revised on
20/21.10.2006 are legal, except the condition no. 6 (iv)
(c ) of the revised notification dated 20/21.10.2006,
which was already struck down by this Court.
ii) Among the qualified candidates, the contract labour
appointed earlier and working as on the date of
issuance of first notification i.e., 6/8.6.2006 with work
experience as certified by the concerned Divisional
Engineer, shall alone be treated as presently working
contract labour and are entitled for preference in
selection based on the length of service.
iii) The persons appointed as on the date of first
notification and revised notification, shall be treated as
freshers.
iv) If the contract labour and freshers apply for the post
of Contract Junior Lineman, the contract labour shall be
given preference for selection as per condition 6 (iv) (b)
of the revised notification.
v) The action of AP Transco and four distribution
companies in selecting the fresh candidates based on
their marks in ITI examination, ignoring the claim of the
eligible experienced contract labour is illegal.
vi) After considering the cases of all the existing
contract labour, still if there remains any vacant posts,
then the cases of the fresh candidates shall be
considered subject to fulfilling the requisite conditions
and the marks obtained in the qualifying examination
shall be the criteria for their selection as per condition 6
(iv) (d) of the revised notification.
8 | P a g e
vii) Applicants who applied pursuant to the notifications
are entitled to be considered even if their names are not
sponsored by the employment exchange concerned.
viii) If more than one contract labour apply for the post
with same length of service and experience, in such
cases, obviously, the candidate with earlier date of birth
shall be given preference for selection.
ix) The technical qualifications, the educational
qualifications, age and experience etc shall be fulfilled
as on the date of the first notification i.e., 6/8.6.2006
alone.
x) The candidates who have applied pursuant to the
notifications dated 6/8.6.2006 as revised on
20/21.10.2006 and fulfil all the requisite qualifications
such as technical, educational, age, nativity, experience
etc as on the date of first notification, shall alone be
considered for the 7114 posts notified by AP Transco
and four distribution companies.
xi) The candidates who have not applied in pursuance of
the notifications dated 6/8.6.2006 as revised on
20/21.10.2006 and permitted to pole climbing test
pursuant to the orders of this Court are not entitled to
be considered.
xii) The action of AP Transco and four distribution
companies in filling up the subsequent vacancies that
arose pursuant to the permission granted by the
Government vide its letter No.565/Ser/2011 dated
15.6.2011, with any of the candidates either affected by
reason of struck down of condition No. 6 (iv) (c ) of the
revised notification or on any account is illegal. If they
are entitled to be selected by giving preference to their
experience/length of service subject to fulfillment of
requisite conditions/qualifications for such consideration
shall be restricted to notified 7114 posts only as they
are entitled for selection under conditions 6 (iv) (a) and
(b) of the revised notification.
xiii) Though the selection and appointment of JLM is for
one-year contract period, the employer is entitled to
retain, absorb and regularize their appointment and also
consider for their promotion.
xiv) The subsequent vacancies of 7319 JLM posts that
arose pursuant to the permission granted by the
Government vide its letter No. 565/Ser/2011 dated
9 | P a g e
15.6.2011 shall be filled by issuing fresh notifications
alone as per the rules.
xv) No contract labour or fresh candidate is entitled to
claim any sort of exemption with regard to age,
educational qualifications, technical qualifications, pass
in pole climbing test etc for consideration of their cases
for appointment to the post of JLM.
xvi) The rule of reservation shall be followed both in
respect of existing contract labour as well as fresh
candidates as per the existing procedure and practice.
Though the unit of appointment is circle/district,
maintenance of the roster as per the existing practice
either division wise or circle wise, as the case may be, is
legal and valid for implementation of rule of reservation,
as the posts are not civil posts.
DIRECTIONS:
a). The selections made contrary to the above
declarations are illegal and they are set aside.
b). The selection of the candidates as against the
subsequent vacancies of 7319 posts of JLM that arose
pursuant to the permission of the government vide
letter No.565/Ser/2011 dated 15.6.2011 is illegal and
the same are set aside.
c). The respondents are directed to review the entire
selection process strictly in terms of this judgment and
the afore said declarations and pass appropriate orders
in accordance with law within a period of eight weeks
from the date of receipt of copy of this order.
d). The respondents are directed to fill up 7319 posts of
JLM that arose pursuant to the permission of the
government vide letter No. 565/Ser/2011 dated
15.6.2011 by issuing the notifications / calling for
applications from the eligible candidates, of course, by
giving preference to the contract labour as per rules.”
Aggrieved by the said judgment, the above appeals
are filed.
8. We have heard the learned counsel for the parties.
The selection and appointment to 7114 posts of Junior
10 | P a g e
Linemen were approved by a judgment dated 10.11.2009
of the Division Bench in Writ Appeal 1434 of 2008 and
Batch. Their services have also been regularized. The
directions issued by the High Court in the impugned
judgment pertaining to the selection of 7114 Junior
Linemen pursuant to the advertisement dated 08.06.2006/
20.10.2006 is not justified. No such directions could be
issued especially after the judgment of another Division
Bench approving appointments of 7114 Junior Linemen
became final. The High Court is right in holding that
appointments could not have been made to posts beyond
the 7114 posts that were advertised. However, the High
Court ought to have considered that the submission made
by the learned Advocate General regarding the imminent
disruption of essential services was taken into account by
an earlier Division Bench which permitted the filling up of
posts beyond the 7114 posts which were advertised. On
the basis of the submission of the learned Advocate
General and the judgment of the High Court in Writ Appeal
1434 of 2008 and Batch, persons who participated in the
selections but could not be appointed in view of condition
mentioned in Clause 6 (iv)(c) of the amended notification
11 | P a g e
dated 20.10.2006 were also appointed as contract
labourers and their services were regularised.
9. A perusal of the declarations and directions in the
impugned judgment would show that the High Court
conducted a scrutiny of the selections made pursuant to
the notifications dated 08.06.2006/20.10.2006 to 7114
posts of Junior Linemen. The submission made by the
learned Senior Counsel appearing for the parties is that the
appointments made to posts beyond 7114 posts that were
advertised on 08.06.2006/20.10.2006 were by way of
implementation of the directions issued by a Division
Bench of the High Court on 10.11.2009 in Writ Appeal 1434
of 2008 and Batch. Therefore, according to them, the
finding of the High Court that appointments made to posts
beyond those that were advertised is not correct. The
directions issued by the High Court are:-
“Therefore, taking the aforesaid undertakings of the
Appellant-Distribution Companies on record, we direct
the Appellant Companies to appoint all the
Respondents/Writ Petitioners, who submitted their
applications pursuant to the notifications dated
8.6.2006 and the other dates, issued by the various
appellant companies, and who have passed the pole
climbing test and fulfilled the other eligibility criterion
for appointment as Junior Linemen, without reference to
and without insisting upon the fulfillment of Condition
No.6 (iv) (c) of the revised notification dated 20.10.2006
within two months from the date of receipt of a copy of
this order.
12 | P a g e
We also make it clear that this direction would be
applicable to all those candidates, who have not
approached this Court but who had applied in pursuance
of the aforementioned notifications, subject to passing
of the pole climbing test and fulfillment of eligibility
criteria.
We however make it clear that the persons who have
not applied in pursuance of the notifications dated
8.6.2006 and the other dates and who have not
subjected themselves to the selection process have no
right whatsoever to claim that they are entitled for such
appointment.
We also make it clear that all the selected and
appointed respondents-Writ Petitioners and others
similarly situated would be entitled for all benefits on
par with the persons who have been appointed as Junior
Linemen as per Condition No.6 (iv)(c) of the revised
notification, including regularization of their service as
per rules and policy.”
10. The said judgment of the High Court in Writ Appeal
No.1434 of 2008 and Batch was referred to in the
impugned judgment. However, the High Court proceeded
to adjudicate the correctness of the selections made
pursuant to the notification dated 08.06.2006/20.10.2006.
The judgment of the High Court in Writ Appeal No.1434 of
2008 and Batch became final and appointments were
made pursuant to the directions issued. The High Court
committed a serious error in re-examining the selections to
7114 posts of Junior Linemen and other appointments
made beyond the posts that were advertised, made
pursuant to the advertisement dated
08.06.2006/20.10.2006. Therefore, the declarations and
13 | P a g e
directions which have a bearing on the selections and
appointments that are already made are not sustainable.
11. Ms. Prerna Singh, learned counsel appearing for the
persons who are similarly situated to those who were
directed to be appointed by the Division Bench in Writ
Appeal No.1434 of 2008 and Batch submitted that some of
the eligible candidates have not been appointed till date.
Mr. R. Venkataramani, learned Senior Counsel appearing
for the DISCOMS fairly submitted that if persons who
applied for selection as Junior Lineman in 2006 were not
appointed due to condition 6(iv) (c) of the revised
notification dated 20.10.2006, they shall be considered for
appointment.
12. Keeping in mind that appointments to the posts of
Junior Linemen have been made long back and the
services of those appointed were regularised, any
interference with such appointments will cause irreparable
loss to them apart from adversely affecting the smooth
functioning of the A.P. TRANSCO and the DISCOMS.
13. Needless to say that, any future recruitment to the
post of Junior Lineman shall be done strictly in accordance
with the law.
14 | P a g e
14. For the aforementioned reasons, the judgment of the
High Court is set aside and the appeals are allowed.
Contempt Petitions are closed. All the pending
applications are disposed of in terms of the above
judgment.
 ..................................J.
[L. NAGESWARA RAO]
 ..................................J.
 [SANJAY KISHAN KAUL]
New Delhi,
February 25, 2019
15 | P a g e

convicted the accused-appellant for the offences under Sections 279 IPC and 304-A IPC; and awarded the punishment of 6 2 months' rigorous imprisonment and fine of Rs. 1,000/- with default stipulation for the offence under Section 279 IPC and 2 years' rigorous imprisonment and fine of Rs. 2,000/- with default stipulation for the offence under Section 304-A IPC. = just and adequate punishment do apply to the present case too; and we find no reason to reduce the punishment awarded or to extend the benefit of probation where a 15 year old boy lost his life due to the rash and negligent driving of the truck by the appellant and where, after causing the accident, the appellant fled from the site and was surrendered by his commandant more than 3 weeks later.

Hon'ble Mr. Justice Dinesh Maheshwari 
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1827 OF 2009
SUBHASH CHAND Appellant(s)
Vs.
STATE OF PUNJAB Respondent(s)
JUDGMENT
Dinesh Maheshwari, J.
In this appeal, the appellant-accused has called in question the order
dated 18.04.2009 in Criminal Revision No. 621 of 2009 whereby, the High
Court of Punjab & Haryana, Chandigarh has upheld his conviction for the
offences under Sections 279 and 304-A of the Indian Penal Code ('IPC').
2. The accusation against the appellant had been that on 10.03.2000, at
around 07:30 a.m., while driving a truck bearing registration No. HPS 5716 at
a high speed and in a rash and negligent manner on the wrong side of a
heavy traffic area at Mall Road, Patiala (near Malwas Cinema), he caused an
accident which resulted in the demise of the rider of an unnumbered Hero
1
Puck Moped. It was further alleged that the appellant immediately fled from
the scene with his vehicle. For the incident in question, FIR was registered at
Police Station Kotwali, Patiala on the statement of Nirpal Singh (PW-2), who
was an eye-witness to the accident alongwith Rajinder Singh (PW-3). The
appellant, who was serving with ITBP, was surrendered by his commandant
and was arrested on 04.04.2000. After completion of investigation, the
accused was charge-sheeted for the offences aforesaid.
3. In trial, the prosecution, inter alia, relied on the testimony of PW-2 Nirpal
Singh, who asserted that at the time of the accident, he was going on a
scooter with his brother Rajinder Singh and saw the truck of ITBP bearing
registration number HPS-5716 being driven by the accused in a rash and
negligent manner; and the truck, while turning on the wrong side of the road,
ran over the moped, resulting in the demise of the rider. Rajinder Singh (PW3) corroborated the testimony of PW-2. The accused-appellant attempted to
suggest that his identity was in doubt as, admittedly, the driver of the offending
truck had fled from the scene.
4. In its judgment and order dated 28.11.2005, the Trial Court rejected the
contentions urged on behalf of the accused and found it proved that he did
cause the accident which resulted in the death of the rider of moped; and
further that the identity of the accused-appellant as driver of the offending
vehicle was not in doubt for he was surrendered by his own commandant.
Accordingly, the Trial Court convicted the accused-appellant for the offences
under Sections 279 IPC and 304-A IPC; and awarded the punishment of 6
2
months' rigorous imprisonment and fine of Rs. 1,000/- with default stipulation
for the offence under Section 279 IPC and 2 years' rigorous imprisonment and
fine of Rs. 2,000/- with default stipulation for the offence under Section 304-A
IPC.
5. The appeal preferred by the accused-appellant against the judgment
and order aforesaid was considered and dismissed by the Sessions Judge,
Patiala by the judgment dated 04.02.2009 after re-appreciation of the entire
evidence on record. The accused-appellant took the matter further in revision
(Criminal Revision No. 621 of 2009), which was also dismissed by the High
Court of Punjab and Haryana at Chandigarh by the impugned order dated
18.04.2009 giving rise to this appeal.
6. The main plank of the case of the appellant is that his involvement in
the accident in question is not proved, inasmuch as his identity as the driver of
the offending vehicle has not been established. The contention so urged
essentially relates to a question of fact and in the present case, the Trial Court
as also Appellate Court, after detailed scrutiny of the evidence on record,
came to the conclusion that the appellant had been the driver of the vehicle in
question who fled from the scene with his vehicle. Even in the revision
petition, the High Court has taken pains to analyse the evidence and, after
due consideration of the material on record, including the testimony of PW-2
Nirpal Singh and PW-3 Rajinder Singh, has affirmed the finding that the
appellant was indeed the driver of the offending vehicle. The Courts have also
taken note of a significant circumstance that the appellant, who was driver on
3
the said truck of ITBP, was surrendered by his own commandant. On the point
of identity of the appellant-accused, the High Court has neatly summed up the
relevant factors in its impugned order dated 18.04.2009 in the following:
“…The tenor of the evidence is that Nirpal Singh (P2)
did not identify as to who was driving the truck when it
was involved in the accident but he identified the driver
of the truck when he was produced in court. Therefore,
from the said deposition it cannot be said that Nirpal
Singh (PW2) had failed to identify the Petitioner as the
person who was driving the truck. Besides, Rajinder
Singh (PW3) in his deposition on 22.08.2003 stated that
he identified the accused (Petitioner) present in Court
who was driving the offending truck. Besides, the
learned JMIC Patiala in her order has observed that the
FIR was lodged on the same day as the date of the
occurrence. Moreover, the fact that the accused
(Petitioner) was got surrendered by his own
Commandant, could not be over-looked. Therefore, the
findings and the conclusions as regards the identity of
the Petitioner as the person who was driving the
offending vehicle stands clearly established and it is not
a case of false implication of the Petitioner…. ’’
Having examined the record, we are satisfied that the baseless
contention about want of identification of the appellant as the driver of
offending vehicle has rightly been rejected and there is no reason to consider
interference in the concurrent finding of fact in this regard.
7. Learned counsel for the appellant has also endeavoured to point out
certain so called shortcomings or inconsistencies in the prosecution case viz.,
that no dent was found on the vehicle in question on its mechanical
examination; that the alleged photographs of the site of accident were not
4
produced; that as per the statement of PW-3 Rajinder Singh, the dead body
was removed at 10 a.m. whereas, as per PW-2 Nirpal Singh, they reached the
hospital with the dead body of the victim at about 8 a.m.; and that in the
inquest report, the suggestion had been that it was a case of natural death.
8. We are clearly of the view that all the suggestions aforesaid are neither
of any effect nor of bearing on the substance of the matter. It is clearly
established on record that the accident in question did take place at 7:30 a.m.
on 10.03.2000, when the truck driven by the accused bumped into the moped
driven by the deceased Lavjot Singh, who fell on the road and succumbed to
the injuries sustained in this accident. In the post-mortem conducted at 2 p.m.
on 10.03.2000, the doctor concerned (PW-5 Dr. O.P. Agarwal) found multiple
lacerated wounds on the head of the deceased with abrasions on the face and
forehead; skull fractured into pieces; brain injured; and mandible and nasal
bone fractured. In the given set of circumstances, any observation in the
inquest report, or any discrepancy regarding the time of reaching the hospital,
or want of photographs, or want of dent on the vehicle, do not create any
uncertainty or doubt about the prosecution case.
9. Another suggestion is made as if the FIR in the present case was
fabricated or manipulated. This suggestion is too remote and is of uncertain
nature because the FIR was registered on the statement of Nirpal Singh (PW2) and there had been no reason to fabricate or manipulate the FIR in this
case relating to a fatal vehicular accident.
5
10. It has also been argued that the incident in question took place about 19
years back and the appellant has already undergone about four months of
imprisonment and hence, no useful purpose would be served by his
imprisonment now at this stage; and in any case, the appellant deserves to be
extended the benefit of probation. These submissions also deserve to be
rejected in the given set of facts and circumstances of this case.
11. In the case of Thangasamy v. State of Tamil Nadu, Criminal Appeal
No. 698 of 2010 decided on 20.02.2019, we have rejected similar
contentions in relation to a vehicular accident case after taking note of several
decisions of this Court on the principles concerning just and adequate
punishment in such cases, including those in Alister Anthony Pareira v.
State of Maharashtra: (2012) 2 SCC 648; State of M.P. v. Ghansyam
Singh: (2003) 8 SCC 13; Dalbir Singh v. State of Haryana: (2000) 5 SCC
82; and State of Karnataka v. Muralidhar : (2009) 4 SCC 463. The same
principles relating to just and adequate punishment do apply to the present
case too; and we find no reason to reduce the punishment awarded or to
extend the benefit of probation where a 15 year old boy lost his life due to the
rash and negligent driving of the truck by the appellant and where, after
causing the accident, the appellant fled from the site and was surrendered by
his commandant more than 3 weeks later.
12. Accordingly, in view of the above, this appeal fails and is, therefore,
dismissed. The appellant shall surrender before the Court concerned within a
period of 4 weeks from today and shall undergo the remaining part of the
6
sentence. In case he fails to surrender within the period aforesaid, the Trial
Court will take necessary steps to ensure that he serves out the remaining
part of sentence, of course, after due adjustment of the period already
undergone.
...............................................J.
 (ABHAY MANOHAR SAPRE)
 ..............................................J.
 (DINESH MAHESHWARI) 1
New Delhi
Dated: 25th February, 2019.
7

whether we should set aside the entire impugned order or set aside only qua the sole appellant herein because the other four accused though suffered conviction under Section 302/149 IPC alike the appellant herein did not file any appeal against their conviction and secondly, the other accused ­ Kanhai Prasad Chourasia whose conviction and sentence under Section 302/149 IPC read with Section 27 of the Arms Act was upheld has also not filed any appeal in this Court.= It is a fundamental principle of law that an illegality committed by a Court cannot be allowed to be perpetuated against a person to a Lis merely because he did not bring such illegality to the notice of the Court and instead other person similarly placed in the Lis brought such illegality to the Court’s notice and succeed in his challenge. 31. It will be a travesty of justice delivery system where an accused, who is convicted of a lesser offence (Section 27 of the Arms Act alone) and was acquitted of a graver offence (Section 302/149 IPC) is made to suffer conviction for commission of a 15 graver offence (Section 302/149 IPC) without affording him of any opportunity to defend such charge at any stage of the appellate proceedings. 32. Needless to say, if the other four accused had filed the appeals in this Court, they too would have got the benefit of this order. A fortiori, merely because they did not file the appeals and the case is now remanded for re­hearing of the appeal at the instance of one accused, the benefit of re­hearing of the appeal cannot be denied to other co­accused. In other words, the non­appealing co­accused are also entitled to get benefit of the order of this Court and are, therefore, entitled for re­hearing of their appeals along with the present appellant.

Hon'ble Mr. Justice Abhay Manohar Sapre


REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.180 OF 2019
Deep Narayan Chourasia            ….Appellant(s)
VERSUS
State of Bihar     ….Respondent(s)
               
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal is filed against the final judgment
and   order   dated   14.11.2017  passed   by   the   High
Court of Judicature at Patna in Criminal Appeal
(DB)   No.77   of   1994   whereby   the   High   Court
dismissed the appeal filed by the appellant  herein.
1
2.  In   order   to   appreciate   the   short   question
involved in this appeal, a few relevant facts need
mention infra.
3. Five   persons,   namely,   (1)   Lukho   Prasad
Chourasia, (2) Birendra Prasad Chourasia, (3) Binod
Prasad Chourasia, (4) Deep Narayan Chourasia and
(5)   Kanhai   Prasad   Chourasia   were   tried   for
commission of offence of murder of  Kaushalya Devi
on   06.02.1992   under   Section   302/149   of     the
Indian Penal Code, 1860 (hereinafter referred to as
“IPC”)   and     Section   27   of   the   Arms   Act   by   the
Additional   Sessions   Judge,     Munger   in   Sessions
Case No. 264/1992.
4. By judgment dated 08.02.1994, the Additional
Sessions   Judge   convicted   the   accused­Kanhai
Prasad   Chourasia   for   the   commission   of   offence
under Section 302 IPC and Section 27 of the Arms
Act and he was accordingly sentenced to undergo
life   imprisonment   under   Section   302   IPC   and
2
rigorous   imprisonment   for   seven   years   under
Section 27 of the Arms Act. Both the sentences were
to run concurrently.
5. So far as co­accused­Lukho Prasad Chourasia,
Birendra   Prasad   Chourasia,   Binod   Prasad
Chourasia   and   Deep   Narayan   Chourasia   are
concerned,   all   the   four   were   acquitted   from   the
charge of commission of offence under Section 302
IPC. However, all the four accused were convicted
for commission of offence under Section 27 of the
Arms   Act   and   accordingly   sentenced   to   undergo
rigorous   imprisonment   for   five   years.     The
concluding   para   of   the   order   of   Sessions   Judge
reads as under:
“Accordingly,   on   the   basis   of   my   findings,
accused  Kanhai  Prasad  Chaurasia,  who   is   in
custody, is convicted u/ss 302 IPC and 27 of
Arms  Act and  is  again  remanded  to  custody
to   serve   his   sentence   and   accused   Lukho
Prasad Chaurasia, Birendra Prasad Chaurasia,
Binod   Prasad   Chaurasia   and   Deep   Narain
Chaurasia; who are on bail; are convicted u/s
27 of Arms Act and, consequently, their bail
3
bonds   are   cancelled   and   are   taken   into
custody to serve their sentences.”
6. All the five accused named above felt aggrieved
by their respective conviction and the award of jail
sentence and filed two criminal appeals in the High
Court.
7. So   far   as   Kanhai   Prasad   Chourasia   is
concerned,   he   filed   Criminal   Appeal(DB)
No.112/1994 whereas the remaining four accused
are   concerned,   they   jointly   filed   Criminal
Appeal(DB)  No.77/1994 in the High Court of Patna.
Both the Criminal Appeals were clubbed together for
hearing.
8. So far as Criminal Appeal No.112/1994 filed
by   the   accused   Kanhai   Prasad   Chourasia   is
concerned, the question to be considered therein
was   only   one,   namely,   whether   the   Additional
Sessions   Judge   was   justified   in   convicting   him
4
(Kanhai Prasad Choursia) under Section 302 IPC
read with Section 27 of the Arms Act.
9. So far as Criminal Appeal No.77/1994 filed by
remaining   four   accused,   namely,   Lukho   Prasad
Chourasia,   Birendra   Prasad   Chourasia,   Binod
Prasad Chourasia and Deep Narayan Chourasia is
concerned,   the   question   involved   therein   was
whether the Additional Sessions Judge was justified
in convicting these four accused under Section 27 of
the   Arms   Act   and   sentenced   them   to   undergo
rigorous imprisonment for five years.
10. The   High   Court,   however,   was   completely
under   misconception   and   misdirected   itself   by
forming an opinion as if all the five accused were
convicted   under   Section   302/149   IPC   and
accordingly went on to appreciate the evidence and
while   dismissing  both  the  appeals  by  a  common
judgment   convicted   four   accused   under   Section
302/149 IPC along with Kanhai Prasad Chourasia.
5
11. This   is   clear   from   the   first   and   concluding
paras   of   the   impugned   judgment,   which   are
reproduced below:
First Para
“As   both   these   appeals   arise   out   of   a
judgment dated 8th February, 1994, passed by
the 12th Additional Sessions Judge, Munger in
Sessions   Trial   No.   264/92,  convicting   the
appellants  under   Section   302   of   I.P.C.   with
life imprisonment and the other accused for
offence under Sections 302/149 I.P.C. to life
imprisonment,   so   also   each   of   them   for
offence 27 of the Arms Act to five years’ R.I.,
these   appeals   have   been   filed   by   the
appellants and they are being disposed of by
this common judgment.” (Emphasis supplied)
Concluding Paras
  “Even  though   learned  counsel  for  the
appellants by taking us through the evidence
tried to point out minor contradictions in the
same,   but   we   find   that   considering   the
complete  reading  of  the  evidence,  the  story
as   is  narrated  by  the  witnesses  and  as   it   is
recorded   in   the   fardbeyan   by   P.W.5   Sundar
Tanti   is   proved.   It   is   a   case   where   the
appellants after the incident that took place
in the morning, with an intention to commit
the crime, armed with rifles and pistols came
to the spot, committed the offence and while
fleeing   away,   to   threaten   the   villagers   who
had   assembled   there,   firing   in   the   air   ran
away.  It   is   a   case   where   they   formed   an
unlawful   assembly,   committed   the   offence
6
and, therefore, conviction under Section 302
and  302/149   of   I.P.C.   is  proper   and   as   the
entire   conviction   is   based   on   the   evidence
that   came   on   record,   we   see   no   reason   to
interfere   into   the   matter   and   allow   this
appeal.  The  prosecution  has  proved   its  case
and   the  conviction,   in  our  considered  view,
does not suffer from any infirmity.
Accordingly,   we   see   no   reason   to
interfere   into  the  matter. The  appeals  being
devoid of merit are dismissed. The appellants
are   on   bail.   Their   bail­bonds   are   cancelled.
They   are  directed   to   be   arrested   and   taken
into   custody   for   undergoing   the   remaining
part of their sentence.” (Emphasis supplied)
12. The effect of the judgment of the High Court is
three­fold.   First,   both   criminal   appeals   stand
dismissed;   Second,   conviction   and   sentence   of
Kanhai   Prasad   Choursia   under   Section   302   IPC
read with Section 27 of the Arms Act is upheld; and
Third, the remaining four accused ­ Lukho Prasad
Chourasia,   Birendra   Prasad   Chourasia,   Binod
Prasad   Chourasia   and   Deep   Narayan   Chourasia
also stand convicted under Section 302 IPC read
7
with Section 149 IPC and Section 27 of the Arms
Act.
13. It is against this judgment, only one accusedDeep Narayan Chourasia has felt aggrieved and filed
this appeal by way of special leave in this Court.
14. So,   the   question,   which   arises   for
consideration in this appeal, is whether the High
Court was right in dismissing the appeal filed by the
appellant herein.
15. Having   heard   the   learned   counsel   for   the
parties and on perusal of the record of the case, we
are constrained to allow the appeal, set aside the
impugned judgment of the High Court and remand
the case to the High Court for re­hearing of the
appeal in question on merits in accordance with
law.
16. In our opinion, the Division Bench failed to
apply its judicial mind and committed fundamental
jurisdictional errors as detailed below.
8
17. The   first   error   was   that   the   High   Court
proceeded on wrong factual premise that all the five
accused   have   suffered   conviction   under   Section
302/149 IPC read with Section 27 of the Arms Act
by the Additional Sessions Judge. It was not so.
18. The second error was that the appellant (Deep
Narayan Chourasia) along with other three accused
(Lukho   Prasad   Chourasia,   Birendra   Prasad
Chourasia   and   Binod   Prasad   Chourasia)   were
acquitted from the charge of commission of offence
under   Section   302/149   IPC   by   the   Additional
Sessions   Judge   but   were   convicted   only   under
Section 27 of the Arms Act and were sentenced to
undergo   rigorous   imprisonment   for   five   years.
However, as a result of the High Court’s order, they
were convicted under Section 302/149 IPC without
there being any appeal filed by the State against the
order of their acquittal and without there being any
9
notice of enhancement of their sentence issued by
the High Court suo motu to these four accused.
19. In other words and as mentioned above, the
question  before the  High Court  was whether the
appellant   herein   (Deep   Narayan   Chourasia)   and
other   three   accused   were   rightly   convicted   and
sentenced to undergo rigorous imprisonment for five
years   under   Section   27   of   the   Arms   Act   by   the
Additional   Sessions   Judge   or   not.   Instead   of
recording any finding of affirmation of the conviction
or acquittal, as the case may be, the High Court
convicted   all   the   four   accused   under   Section
302/149 IPC also.
20. The third error was that the High Court failed
to   see   that   the   Additional   Sessions   Judge   had
acquitted all the accused under Section 149 IPC, yet
the High Court proceeded to convict all the accused
under   Section   149   IPC   without   there   being   any
appeal filed by the State on this issue.
10
21. The   fourth   error   was   that   though   the   High
Court wrongly convicted the appellant along with
three   others   for   the   offence   punishable   under
Section   302/149   IPC,   yet   did   not   award   any
sentence to any of the four accused under Section
302/149 IPC.
22. Since the appellant and other three accused
were acquitted of the charge under Section 302/149
IPC by the Additional Sessions Judge, yet the High
Court convicted them under Section 302/149 IPC
for  the  first  time,  the  sentence  prescribed  under
Section 302/149 IPC was mandatorily required to
be awarded to each convicted accused as provided
under   Section   354(3)   of   the   Code   of   Criminal
Procedure, 1973.
23. The   effect   of   the   impugned   judgment,
therefore, is that though the appellant along with
three   accused   have   suffered   conviction   under
Section 302/149 IPC but without sentence.
11
24. Now,   the   next   question,   which   arises   for
consideration though not urged by any parties, is
whether we should set aside the entire impugned
order or set aside only qua the sole appellant herein
because   the   other   four   accused   though   suffered
conviction   under   Section   302/149   IPC   alike   the
appellant herein did not file any appeal against their
conviction and secondly, the other accused ­ Kanhai
Prasad Chourasia whose conviction and sentence
under Section 302/149 IPC read with Section 27 of
the Arms Act was upheld has also not filed any
appeal in this Court.
25. The Constitution Bench of this Court in Durga
Shankar Mehta vs Thakur Raghuraj Singh & Ors.,
AIR   1954   SC   520   examined   the   question   as   to
whether   the   powers   conferred   upon   this   Court
under   Article   136   of   the   Constitution   can   be
exercised  suo motu  to meet the ends of justice in
favour of non­appealing accused.
12
26. The learned Judge B.K. Mukherjea (as he then
was and later became CJI) speaking for the Bench
in   his   distinctive   style   of   writing   answered   the
question in affirmative holding that: 
“The powers given by Article 136 of the
Constitution   however   are   in   the   nature   of
special   or   residuary   powers   which   are
exercisable   outside   the   purview   of   ordinary
law,   in   cases   where   the   needs   of   justice
demand interference by the Supreme Court of
the   land.  The  article   itself   is  worded   in  the
widest terms possible. ……. The Constitution
for   the   best   of   reasons   did   not   choose   to
fetter or circumscribe the powers exercisable
under this article in any way……….
This  overriding  power,  which  has  been
vested   in   the   Supreme   Court   under Article
136 of  the  Constitution,   is   in  a  sense  wider
than the prerogative right of entertaining an
appeal   exercised  by   the  Judicial  Committee
of the Privy Council in England.”
27. This   Court   has   since   then   consistently
extended the benefit of the order passed in appeal
under Article 136 of the Constitution  also to those
accused who had not preferred the appeal against
their conviction in the light of the aforementioned
13
principle in appropriate cases.[see  Harbans  Singh
vs.  State  of  U.P.  &  Ors., (1982) 2 SCC 101,Raja
Ram & Ors. vs. State of M.P., (1994) 2 SCC 568,
Chellappan Mohandas & Ors. vs. State of Kerala,
1995 Supp(1) SCC 259, Dandu Lakshmi Reddy vs.
State of A.P., (1999) 7 SCC 69,  Anil Rai vs. State
of Bihar, (2001) 7 SCC 318,   Bijoy Singh &  Anr.
vs. State of Bihar, (2002) 9 SCC 147, Gurucharan
Kumar   &   Anr.  vs.  State   of   Rajasthan, (2003) 2
SCC 698,  Suresh  Chaudhary  vs.  State  of   Bihar,
(2003) 4 SCC 128, Akhil Ali Jehangir Ali Sayyed
vs.  State  of  Maharashtra, (2003) 2 SCC 708 and
Pawan Kumar vs. State of Haryana (2003) 11 SCC
241].
28. Having given our anxious consideration to this
question and keeping in view the aforementioned
principle of law laid down in decided cases, we are
of the considered opinion that the entire impugned
14
order deservers to be set aside against all the five
accused.
29. In our view, an order, which is based entirely
on   wrong   factual   premise   once   held   illegal   by   a
superior   Court   at   the   instance   of   one   accused,
cannot   be   allowed   to   stand   against   other   nonappealing accused persons also.
30. It is a fundamental principle of law that an
illegality committed by a Court cannot be allowed to
be perpetuated against a person to a  Lis  merely
because he did not bring such illegality to the notice
of   the   Court   and   instead   other   person   similarly
placed   in   the  Lis  brought   such   illegality   to   the
Court’s notice and succeed in his challenge.
31. It will be a travesty of justice delivery system
where   an   accused,   who   is   convicted   of   a   lesser
offence (Section 27 of the Arms Act alone) and was
acquitted of a graver offence (Section 302/149 IPC)
is made to suffer conviction for commission of a
15
graver   offence   (Section   302/149   IPC)   without
affording  him  of  any  opportunity  to   defend  such
charge at any stage of the appellate proceedings.
32. Needless to say, if the other four accused had
filed the appeals in this Court, they too would have
got   the   benefit   of   this   order.  A   fortiori,   merely
because they did not file the appeals and the case is
now remanded for re­hearing of the appeal at the
instance of one accused, the benefit of re­hearing of
the appeal cannot be denied to other co­accused. In
other words, the non­appealing co­accused are also
entitled to get benefit of  the order of this Court  and
are,   therefore,   entitled   for   re­hearing   of   their
appeals along with the present appellant.
33. It is for all these reasons, the impugned order
stands set aside also  qua  all the accused persons.
34. In the  light  of  the foregoing discussion, the
appeal   succeeds   and   is   accordingly   allowed.   The
16
impugned order is set aside in its entirety. Both the
Criminal   Appeals,   i.e.,   Criminal   Appeal(DB)   No.
77/1994   and  Criminal   Appeal(DB)   No.  112/1994
are restored to their original numbers before the
High Court for their analogues hearing.
35. We request the High Court to decide both the
Criminal   Appeals   on   their   respective   merits   in
accordance with law.
36. Since the appellant­Deep Narayan Chourasia
out of his total jail sentence of five years awarded by
the   Additional   Sessions   Judge   for   commission   of
offence   under   Section   27   of   the   Arms   Act   has
already undergone jail sentence of five months, we
release him (Deep Narayan Chourasia) on bail to the
satisfaction of the concerned Trial Court pending
Criminal Appeals before the High Court.
37. We, however, make it clear that we have not
expressed any opinion to the factual aspect of the
case  on  their  respective  merits, which  is  subject
17
matter of the two criminal appeals and, therefore,
the High Court will decide both the appeals on their
respective merits uninfluenced by any observations
made by this Court.
38. A   copy   of   this   order   be   sent   to   other   four
accused persons by the Registry of this Court to
enable them to appear before the High Court for
prosecuting their appeals.
39. The High Court will issue notice to other four
accused   persons   before   hearing   the   appeals,   if
anyone fails to appear.   The High Court may also
consider   appointing   a   lawyer   for   providing   them
legal assistance.       
                                 .………...................................J.
                                [ABHAY MANOHAR SAPRE] 
                           
 …...……..................................J.
                  [DINESH MAHESHWARI]
New Delhi;
February 25, 2019
18

Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, = when the plaintiff's injunction application stood dismissed by the Trial Court and the same was not carried in appeal at his instance, the same could not have been revived by the High Court in a writ petition filed by the plaintiff. We are, therefore, unable to agree with the view taken by the High Court as the High Court neither examined the facts of the case properly nor the legal questions arising in the case, therefore such order is legally unsustainable.

Hon'ble Mr. Justice Abhay Manohar Sapre
NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL  APPEAL No. 2013  OF 2019
(Arising out of S.L.P.(C) No.23249 of 2018)
Shri Revansiddeshwar Pattan
Sahakari Bank Niyamit ….Appellant(s)
VERSUS
Taluka Tokrekoli
(Ambiga Samaji C Vikas Sangh
Indi) (Earlier Gangamath Sangha)
& Anr.      ….Respondent(s)
               
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is filed against the final judgment
and order dated 28.06.2018 passed by the High Court
of Karnataka at Kalaburagi in Writ Petition No.203932
1 1
of 2015 whereby the High Court partly allowed the writ
petition filed by respondent No.1 herein.
3. A few facts need mention infra for the disposal of
this appeal, which involves a short question.
4. The appellant is defendant No. 2, respondent No.
1 is the plaintiff and respondent No. 2 is defendant No.
1 in O.S. No.445/2013 before the Court of Civil Judge,
Indi at Indi.
5. Respondent No. 1 has filed a civil suit against
respondent   No.   2­Deputy   Commissioner,   Bijapur
(defendant No. 1) and the appellant (defendant No. 2).
The suit is for a declaration and injunction in relation
to the suit land as detailed in the plaint.
6. In this suit, the plaintiff (respondent No. 1 herein)
as well as defendant No. 2 (appellant herein) both filed
an   application   for   grant   of   injunction   against   each
other under Order 39 Rules 1 and 2 read with Section
151 of the Code of Civil Procedure, 1908 being IA No.1
and IA No.2 respectively.
2 2
7. The Trial Court by order 10.03.2014 dismissed
both   the   applications.   Defendant   No.   2   (appellant
herein)   felt   aggrieved   by   the   dismissal   of   his
application (IA No.2) filed Misc. Appeal No. 7/2014 in
the Court of Senior Civil Judge & JMFC, Indi. By order
dated 16.07.2015 (Annexure P­9), the appellate Court
allowed the appeal and granted injunction which reads
as under:
“The   appeal   filed   by   the   defendant
No.2/appellant is allowed.
The   orders   passed   by   the   Trial   Court,   Civil
Judge   &   JMFC,   Indi   on   I.A.No.2   filed   by
defendant   No.2/appellant   under   Order   39
Rules  1   and  2   of  CPC   in  O.S.  No.445/2013
dated 10.3.2014 is hereby set aside.
The   plaintiff/respondent   No.1   is   hereby
restrained   from   causing   obstruction   to   the
defendant   No.2/appellant   in   making
constructing  over  the  property  as  prayed   in
the   application   I.A.No.2   till   the   disposal   of
suit.
No order as to costs.”
8. The plaintiff (respondent No. 1) felt aggrieved and
filed   W.P.   No.203932/2015   in   the   High   Court   of
3 3
Karnataka, Kalaburagi and questioned its legality and
correctness. By impugned order, the Single Judge of
the High Court partly allowed the writ petition filed by
the   plaintiff   (respondent   No.   1).   The   High   Court
confirmed the injunction granted to defendant No. 2 by
the Appellate Court and at the same time also granted
injunction   in   favour   of   the   plaintiff   and   restrained
defendant   No.   2   from   interfering   in   plaintiff's
possession. The order reads as under:
“Therefore,   the   petition   is   partly   allowed.
The   order   dated   16.7.2015   passed   by   the
appellate  Court,   i.e.,  the  Senior  Civil  Judge
and   JMFC,   Indi,   in   Miscellaneous   Appeal
No.07   of   2014   granting   injunction   to   the
defendants  with  respect  to  property  bearing
CTS   No.1336A/1B1B/1A1A/1A1A/29
measuring 30x55=1650 sq. ft. situated at Indi
is   confirmed.     At   the   same   time,   the
application   filed   by   the   plaintiff   for
injunction   against   the   defendants   with
respect   to   property   bearing   CTS
No.1336A/1B/1A/1/1A/1A  measuring  30x40
and further 15x30 situated at Indi is allowed.
The   defendants   are   restrained   from
interfering in the  peaceful possession  of the
plaintiff’s   property   bearing   CTS
No.1336A/1B/1A/1/1A/1A  measuring  30x40
and   further   15x30   situated   at   Indi.     The
plaintiff is restrained from interfering in the
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defendants’   possession   of   property   bearing
CTS   No.1336A/1B1B/1A1A/1A1A/29
measuring   30x55=1650   sq.ft.   situated   at
Indi.”
9. It   is   against   this   order   of   the   High   Court,
defendant No. 2 has felt aggrieved and filed this appeal
by way of special leave in this Court.
10. So,   the   short   question,   which   arises   for
consideration in this appeal, is whether the High Court
was justified in allowing the plaintiff's writ petition in
part.
11.   Having heard the learned counsel for the parties
and   on   perusal   of   the   record   of   the   case,   we   are
inclined to allow the appeal and while setting aside the
impugned order remand the case to the High Court for
hearing  the writ  petition  afresh  in  accordance  with
law.
12. The need to remand the case to the High Court
has occasioned for the reason that firstly, the High
Court did not assign any reasons for allowing the writ
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petition and secondly, the High Court seemed to have
passed somewhat inconsistent order.
13. It   is   clear   from   the   fact   that   the   High   Court
allowed the injunction application made by both the
parties against each other though the writ petition was
filed by the plaintiff against the appellate order, which
was passed only on the injunction application filed by
defendant No. 2 ( IA No.2) in their favour.
14. In other words, the only question before the High
Court was whether the Appellate Court was justified in
allowing   the   defendant   No.2's   appeal   and   in
consequence was justified in allowing his (defendant’s)
injunction   application   (I.A.No.2)   made   against   the
plaintiff   seeking   injunction   in   relation   to   the   suit
property.
15. The reason was that it was not in dispute that
the   plaintiff   did   not   challenge   before   the   Appellate
Court that part of the order of the Trial Court by which
his injunction application was dismissed.
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16. In this view of the matter when the plaintiff's
injunction   application   stood   dismissed   by   the   Trial
Court and the same was not carried in appeal at his
instance, the same could not have been revived by the
High Court in a writ petition filed by the plaintiff.
17.   We are, therefore, unable to agree with the view
taken by the High Court as the High Court neither
examined the facts of the case properly nor the legal
questions arising in the case, therefore such order is
legally unsustainable.
18. The appeal is accordingly allowed. The impugned
order is set aside. The case is remanded to the High
Court for deciding the writ petition afresh on its merits
in accordance with law.       
                                     .………...................................J.
                                   [ABHAY MANOHAR SAPRE]
 
                               
     …...……..................................J.
             [DINESH MAHESHWARI]
New Delhi;
February 25, 2019
7 7

Amendement of plaint rejected = In our view, the Trial Court was right in rejecting the application. This we say for more than one reason. First, it was wholly belated; Second, respondent No.1(plaintiff) filed the application for amendment of the plaint when the trial in the suit was almost over and the case was fixed for final arguments; and Third, the suit could still be decided even without there being any necessity to seek any amendment in the plaint. In our view, 4 4 amendment in the plaint was not really required for determination of the issues in the suit.

Hon'ble Mr. Justice Abhay Manohar Sapre
NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL  APPEAL No. 2012 OF 2019
(Arising out of S.L.P.(C) No.1873 of 2012)
Vijay Hathising Shah & Anr. ….Appellant(s)
VERSUS
Gitaben Parshottamdas Mukhi & Ors.    ….Respondent(s)
               
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is filed against the final judgment
and   order   dated   08.01.2008  passed   by   the   High
Court   of   Gujarat   at   Ahmedabad   in   Special   Civil
1 1
Application   No.6737   of   2007   whereby   the   High
Court allowed the Special Civil Application filed by
respondent No.1 herein and while setting aside the
order dated 23.02.2007 of the Trial Court allowed
the application for amendment of the plaint filed  by
respondent No.1 herein.
3. The   appeal   involves   a   short   point   for   its
disposal as would be clear from the facts mentioned
hereinbelow.
4. The   appellants   are   the   proposed   defendants
whereas respondent No.1 is the plaintiff and other
respondents   are   the   defendants   in   Civil   Suit
No.6170 of 1990 pending in the City Civil Court,
Ahmedabad.
5. Respondent No.1 (plaintiff) has filed the suit
for partition of the suit land and for consequential
reliefs against the other respondents.   In the said
suit,   respondent   No.1   filed   an   application   for
2 2
amendment of the plaint.  The Trial Court by order
dated 23.02.2007 rejected the said application.
6.   Respondent   No.1   felt   aggrieved   by   the
rejection of her amendment application by the Trial
Court   and   filed   Special   Civil   Application
No.6737/2007   in   the   High   Court   of   Gujarat   at
Ahmedabad.   By impugned order, the High Court
allowed   the   Special   Civil   Application   and   while
setting aside the order dated 23.02.2007 of the Trial
Court   allowed   the   amendment   application   giving
rise to filing of this appeal by way of special leave in
this Court by the proposed defendants.
7. So,   the   short   question,   which   arises   for
consideration in this appeal, is whether the High
Court   was   justified   in   allowing   the   Special   Civil
Application filed by respondent No.1(plaintiff) and
was, therefore, justified in allowing the amendment
application.
3 3
8. Heard Mr. P.H. Parekh, learned senior counsel
for the appellants and Mr. Priank Adhayarn, learned
counsel for the respondents.
9. Having   heard   the   learned   counsel   for   the
parties and on perusal of the record of the case, we
are inclined to allow the appeal and while setting
aside the impugned order restore the order of the
Trial   Court   and   reject   the   application   filed   by
respondent No.1 (plaintiff) for amendment of   her
plaint.
10. In   our   view,   the   Trial   Court   was   right   in
rejecting the application.  This we say for more than
one reason. First, it was wholly belated; Second,
respondent   No.1(plaintiff)  filed  the   application   for
amendment  of the plaint when the trial in the suit
was almost over and the case was fixed for final
arguments;   and   Third,   the   suit   could   still   be
decided even without there being any necessity to
seek any amendment in the plaint.   In our view,
4 4
amendment in the plaint was not really required for
determination of the issues in the suit.
11. It is for these reasons, the impugned order is
legally   unsustainable.   The   appeal   thus   succeeds
and is accordingly allowed. The impugned order is
set aside and the order dated 23.02.2007 of the
Trial Court is restored.
12. The Trial Court is directed to decide the civil
suit within one month strictly in accordance with
law.         
                                     .………...................................J.
                                   [ABHAY MANOHAR SAPRE]   
                               
     …...……..................................J.
             [DINESH MAHESHWARI]
New Delhi;
February 25, 2019
5 5